Case 6: C Spencer Ltd v MW Tech Projects UK Ltd [2021] EWHC 1284 (TCC) Waksman J – Jurisdiction – timing of service of adjudication notice
"Where an adjudicator is not appointed under 4.1 or 4.2, the party issuing the notice may request ICHEME to nominate an adjudicator. Such request shall be in writing..." Held: nothing in the words of clause 3.1 or 4.3 required the sequential issuing of the two types of document. There was no previous authority on these provisions. Cases about service of notices under the Scheme were unhelpful in construing this sub-contract. The proof of the pudding was in the eating. On receipt of the email, MW acted immediately. The 4th edition of Coulson on Adjudication (2018), 18.16 recommended that both notices were sent at the same time. That militated against any idea of unfairness or impracticality where notices were sent simultaneously. MW claimed that being copied in on an email addressed to ICHEME could not amount to the "giving of notice" required by cl. 3.1. As a matter of principle the court could not see why not. Nothing in cl. 3.1 required formal "service" or stipulated any mode of giving notice, rather it provided for the simple giving of notice. Defence 2 : This was a hybrid contract: some works were governed by the Act, some not. MW argued that the adjudicator should have taken into account the value of its counterclaim said to be worth £4.3m, though they also said he was not entitled to value it as it arose from the excluded operations. This approach, described by the judge as “look but don’t touch”, appeared to be tactical. Adjudicator had included a ‘nil’ value in his decision, thus taking the counterclaim out of the adjudication altogether. He was not valuing something he had no jurisdiction to deal with. In any event as there was no payless notice, the adjudicator was not obliged to take the counterclaim into account.
CSL applied for summary judgment to enforce an award in its favour for £3,397,029.03 dated 14 January 2021.
Three defences were raised two of which are worth mentioning.
Defence 1: Under the Scheme, and s 108(2) of the Act, it has been held a notice of adjudication has to be given before the referring party applies for the appointment of an adjudicator. Here CSL sent an email to ICHEME (the ANB), enclosing a copy of the notice of adjudication and at the same time copied the email to the responding party, MW. MW objected that the notice had not been served before the application to the ANB to appoint the adjudicator and was ineffective. The adjudicator made a non-binding decision that the notice had been effectively given and he had jurisdiction.
The sub-contract was based on the IChemE Grey Book and Cl.3.1 provided:
"The party wishing to refer to arbitration any dispute arising or in connection with a contract may give a notice at any time to that effect to the other party".
Clause 4.3 provided:
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